In the Interest of K.G., a Child v. the State of Texas

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-23-00422-CV

IN THE INTEREST OF K.G., A CHILD

On Appeal from the 72nd District Court Lubbock County, Texas Trial Court No. 2020-540,553, Honorable J. Phillip Hays, Presiding

February 28, 2024 MEMORANDUM OPINION Before QUINN, C.J. and PARKER and DOSS, JJ.

Appellant TG appeals the trial court’s judgment by which her parental relationship

with daughter KG was terminated. TG maintains the record failed to prove one of the two

predicate grounds for termination and that it also failed to prove KG’s best interest was

served by termination of the parent-child relationship. We affirm.

Background

TG gave birth to KG in 2018. TG’s husband, who has since passed away, was not

the biological father of KG. Instead, the biological father was a family friend, Charles,

known to TG at the time to be a registered sex offender. Shortly after TG’s husband passed in 2021, the Department became involved based on allegations of neglectful

supervision.

The record indicates that, for a number of years, both before and after KG’s birth,

TG abused prescription painkillers and other controlled substances, such as Xanax and

marijuana. In 2017, she pleaded guilty to possession of a controlled substance and was

placed on three years deferred adjudication community supervision. Her community

supervision was extended three times, two of those extensions having been designed to

allow her extra time to pay fees and fines.

TG regularly left KG in the care of Charles and his wife, A.H., despite TG’s knowing

Charles’s criminal history. KG would later made outcries of sexual abuse against Charles.

KG’s therapist testified that based on KG’s account and her behavior, including night

terrors and violent outbursts, and other signs of trauma, she had “no doubts” that sexual

abuse did occur. She added that KG suffered from a form of post-traumatic stress

disorder brought about by the sexual abuse, the recent passing of the man she believed

to be her father, removal from her mother’s care, and brief stay in another foster home

prior to her current placement.

Charles was arrested on charges of sexually abusing KG and ultimately signed a

relinquishment of his parental rights. TG expressed an interest in helping Charles regain

his parental rights, however.

We learn that TG and KG’s life was unstable in terms of TG’s sporadic

employment, continuing pattern of criminal conduct, and inability to maintain a stable

residence. KG was placed in foster care. Thereafter, TG was arrested in the summer of

2023 for theft and remained incarcerated at the time of trial.

2 At the time the final hearing was held, KG was four years old and was living in a

foster home with foster parents who have fully committed to caring for her and addressing

the mental health issues with which she struggled upon her placement in the home. The

foster parents express their firm intent on adopting KG in the event TG’s parental rights

are terminated.

At the close of the evidence, the trial court found clear and convincing evidence

supported termination of TG’s parental rights pursuant to subsections (E) and (O) of

§ 161.001(b)(1) of the Texas Family Code. See TEX. FAM. CODE ANN. § 161.001(b)(1)(E),

(O). It further found, by clear and convincing evidence, that termination of mother’s rights

was in KG’s best interest. See id. § 161.001(b)(2).

Standards of Review

The standards for reviewing the legal and factual sufficiency of the evidence in

termination cases are well-established and described most recently in In re J.F.-G., 627

S.W.3d 304 (Tex. 2021). We apply them here.

Issue 1—Predicate Grounds

Unchallenged predicate findings are binding on the reviewing court unless the

contrary is established as a matter of law or there is no evidence to support the finding.

See In re E.E., 678 S.W.3d 370, 373 n.2 (Tex. App.—Amarillo 2023, pet. denied) (citing

In re R.A.W., No. 07-13-00316-CV, 2015 Tex. App. LEXIS 3039, at *17 (Tex. App.—

Amarillo Mar. 27, 2015, no pet.) (mem. op.)). Here, TG does not challenge the trial court’s

predicate finding under subsection (O), meaning that said finding is binding on this court.

Indeed, the record supports a finding by clear and convincing evidence that TG failed to

comply with the provisions of a court order that specifically established the actions

3 necessary for her to obtain the return of KG. Such a finding would support termination,

assuming the trial court also properly found that termination was in the child’s best

interest.

However, in light of the nature of the rights involved and ramifications of

termination under subsection (E), we review TG’s issue concerning the sufficiency of the

evidence to support the trial court’s finding that clear and convincing evidence supports

a finding under subsection (E). See In re N.G., 577 S.W.3d 230, 237 (Tex. 2019) (per

curiam); see also TEX. FAM. CODE. ANN. § 161.001(b)(1)(M) (permitting subsequent

termination if same occurred earlier under (D) or (E) as to another child).

We will affirm a finding under subsection (E) if clear and convincing evidence

shows that the parent engaged in conduct or knowingly placed the child with persons who

engaged in conduct endangering the child’s physical or emotional well-being. See TEX.

FAM. CODE ANN. § 161.001(b)(1)(E); In re E.E., 678 S.W.3d 370, 373 (Tex. App.—Amarillo

2023, pet. denied). Endangering conduct under (E) need not occur in the presence of

the child; endangering conduct may occur prior to the birth of the child and may include

what a parent does both before and after the Department has removed the child from the

parent’s care. See In re T.N., 180 S.W.3d 376, 383 (Tex. App.—Amarillo 2005, no pet.).

Using illegal controlled substances impairs the ability to properly care and

supervise a child. In re J.W., No. 07-23-00290-CV, 2023 Tex. App. LEXIS 8455, at *3-4

(Tex. App.—Amarillo Nov. 8, 2023, no pet.) (mem. op.); see In re J.O.A., 283 S.W.3d 336,

345 (Tex. 2009). So too does it endanger the child’s emotional and physical well-being.

Id. Thus, evidence that TG continually abused prescription and nonprescription drugs

supports the trial court’s finding that her conduct ran afoul of subsection (E). Likewise,

4 evidence of a parent’s criminal conduct, convictions, or imprisonment is evidence of

endangering conduct. See In re E.E., 678 S.W.3d at 373; In re A.W.T., 61 S.W.3d 87, 98

(Tex. App.—Amarillo 2001, no pet.).

T.G.’s disregard of the known risk posed by Charles to KG and her having regularly

allowed KG to be in his care despite knowing his past criminal history of child sex abuse

also represents endangering conduct. See In re C.T., No. 12-09-00401-CV, 2010 Tex.

App. LEXIS 9451, at *21 (Tex. App.—Tyler Nov. 30, 2010, no pet.) (mem. op.); see also

In re L.C., 145 S.W.3d 790, 797 (Tex. App.—Texarkana 2004, no pet.) (“Placement with

an abusive parent or relative is endangerment under subsection . . . (E).”). Further, her

apparent disbelief and/or continued reliance on the relationship between Charles and KG

is conduct dangerous to KG’s physical and emotional well-being. See In re C.T., 2010

Tex. App. LEXIS 9451, at *22. The fact that she advocated for his regaining parental

rights to KG also demonstrates conduct that endangers KG’s physical and emotional well-

being. See id. Her conduct in this regard represents a clear failure to protect her daughter

and a disregard of the child’s safety by leaving her in the care of a man she knew to have

a history of child abuse. 1 TG even acknowledged the risk to some degree when she

explained why she never left KG alone with Charles without Charles’s wife also being

there: “I just didn’t let my daughter just go with anybody.” Evidence of TG’s having

promoted “regular contact” with Charles is certainly evidence probative to subsection (E)’s

predicate grounds.

1 Following K.G.’s removal and while T.G. remained incarcerated, she began a relationship with

another man whose criminal history includes allegations of sexual abuse of a child. Her therapist noted her pattern of choosing abusive partners. 5 Finally, TG’s failure to complete court-ordered services may be considered

evidence of endangering conduct. See In re E.E., 678 S.W.3d at 373; see also A.S. v.

Tex. Dep’t of Family & Protective Servs., 394 S.W.3d 703, 712 (Tex. App.—El Paso 2012,

no pet.) (“The parent-child relationship, and efforts to improve or enhance parenting skills,

are relevant in determining whether a parent’s conduct results in endangerment under

subsection (E).”). While TG did complete some of the ordered services, she failed to

complete others. She ultimately failed to achieve any meaningful improvement in terms

of parenting or life skills, per her therapist. While she admitted having used painkillers,

Xanax, and marijuana for years, she refused to accept that she had a problem.

The trial court’s finding that clear and convincing evidence supported termination

under subsection (E) is supported by legally and factually sufficient evidence. The

evidence described above allowed a reasonable factfinder to form a firm belief or

conviction that TG 1) engaged in conduct that endangered KG’s physical and emotional

well-being and 2) knowingly left KG in the care of others who likewise endangered her.

We overrule TG’s first issue.

Issue 2—Best Interest

TG also challenges the trial court’s finding that termination of the parent-child

relationship was in KG’s best interest. We note that the above-referenced evidence is

one of many factors also relevant to determinations of a child’s best interest. See In re

C.H., 89 S.W.3d 17, 28 (Tex. 2002) (stating that evidence establishing a statutory ground

for termination may also be probative when determining the child’s best interest); Holley

v. Adams, 544 S.W.2d 367, 372 (Tex. 1976); see also TEX. FAM. CODE ANN. § 263.307(b)

(providing a list of factors to consider when determining a child’s best interest).

6 A mother’s choice to leave her child in the care of a person she knows to have

been convicted of child sexual abuse is a poor parenting choice, at a minimum, and is

relevant to the consideration of TG’s parenting skills. She has continued to make poor

choices as well, as exemplified by her becoming involved with another man who allegedly

has a history of child sexual abuse. Further, though programs to improve her life skills

and parenting skills were made available to her, she refused to take advantage of them

and instead insisted that she did not have a problem with substance abuse or life choices.

In contrast, the foster parents consistently communicate with KG’s counselor and

work diligently on ways to help her with her physical and mental health concerns. Both

the Department staff and the counselor predict the foster family’s dedication will continue

to help KG as she grows. Notably, the foster parents voiced their grave concerns when

they learned that TG was still in contact with Charles and noted their objections to Charles

having any contact with KG. While it appears that TG has finally come to terms with

Charles being a danger to KG and has finally abandoned her efforts to reinstate the

parental rights Charles voluntarily relinquished, it appears that her change is far too late

to make any direct improvements in KG’s life. The foster parents, rather, have taken it

upon themselves to ensure KG’s safety and healthy development.

Indeed, KG came to her current foster home a very troubled young child having

suffered the death of the man she believed was her father, the neglectful supervision by

her mother, sexual abuse at the hands of her biological father, separation from her

biological mother, and her placement into and removal from a previous foster home.

Through counseling and commitment by the foster parents, KG has settled and developed

into a much happier, healthier child who has bonded with her foster family.

7 TG remains optimistic about her life outside jail, testifying that she thinks she will

get no more than ten months probation. She explained that she would like KG to stay

with her foster family until such time that she was out of jail and back on her feet. This

vague plan ignores KG’s need for permanence and stability. “[T]he prompt and

permanent placement of the child in a safe environment is presumed to be in the child’s

best interest.” See TEX. FAM. CODE ANN. § 263.307(a). The foster family, again, plans to

adopt KG and help to put her on the path to a happy, fulfilling life. The foster father

explains: “I love [K.G.]. I want her to be safe. I want to give her a home to live in that’s

stable and secure and give her every opportunity that we can afford to give her.”

Having considered the record evidence, we conclude it to be legally and factually

sufficient to support the trial court’s finding that K.G.’s best interest is served by

terminating TG’s parental rights. We overrule TG’s second issue.

Having overruled both issues TG has presented on appeal, we affirm the trial

court’s order terminating the parent-child relationship between TG and KG.

Brian Quinn Chief Justice